Another Setback for Immigration Action

President Obama’s effort to overhaul the immigration system through executive action has lost in court again. On Monday a federal appeals-court panel, in a 2-1 vote, blocked the administration from moving forward with programs to shield up to 5 million people from deportation.

Those lives remain in limbo. The system remains broken. The ruling, in the United States Court of Appeals for the Fifth Circuit, is a setback. But immigrant advocates are encouraged anyway, because the decision arrived in time for the administration to appeal to the Supreme Court, and perhaps win its case there next summer.

That outcome is far from certain, and a big Supreme Court showdown involving this fevered subject next year, at the height of the presidential campaign, could have all kinds of nasty and unexpected consequences for the immigration battlefield.

But a resolution to this standoff, for millions of immigrants and their families, is still worth fighting for. Hope and resolve are still the best responses in the face of diehard Republican resistance to any kind of immigration reform. Mr. Obama is right to defend his use of prosecutorial discretion — in the total absence of congressional action — to focus immigration enforcement on dangerous criminals and not low-priority immigration violators. He has acted because Congress has failed to accept what history surely will: that policies giving unauthorized immigrants a chance to come forward and live within the law are better than those that wall them out, thwart their potential and deny their place in society.

It was just that congressional failure that led Mr. Obama to create his executive programs in the first place. His plan last November to expand a 2012 program for young unauthorized immigrants, called DACA, and to create a new program, DAPA, for parents, led to the 26-state lawsuit challenging his right to act. The plaintiff states used tortured explanations to make speculative claims of injury, while accusing the administration of refusing to enforce immigration laws – a ridiculous thing to say, given the millions of people deported at a record pace by Mr. Obama’s Homeland Security Department.

Republicans found a sympathetic district judge in Texas who blocked expanded DACA and DAPA. The district court’s flawed arguments, repeated and magnified by the appeals panel, were expertly exposed and filleted, one by one, in a sharp opinion on Monday from the dissenting judge, Carolyn King. She said the federal courts had no place injecting themselves into a matter of prosecutorial discretion, and denounced the “clear errors of fact” by the district court that the appeals court had not just failed to correct, but also compounded. “A mistake has been made,” she said. Now it is up to the Supreme Court to correct it.

It may be too late for that to happen on Mr. Obama’s watch; the programs’ fate may have to await his successor. It is already too late for the millions of immigrants who have been deported, and probably for many of the thousands now in detention. As the case drags on, immigrant-rights advocates have helpfully listed other ways Mr. Obama could act, now, to keep moving the country in the right direction. They include releasing inmates from the bloated and corrupted detention system; eliminating programs that entangle local police with Immigration and Customs Enforcement; and deferring the deportations of whistleblowers in cases involving abuses of immigrants’ civil rights.

As so often is the case with the immigration debate, hopes are stalled but not dead. There is a humane, compassionate conversation to be had about how to resolve the fates of 11 million people living here outside the law. That conversation has been stymied by a militarized enforcement regime, a lobotomized Congress, a radicalized Republican Party — and, lamentably, a politicized judiciary willing to lend the Republicans’ nativist agenda a helping hand.